specifies the covenants to be inserted in the lease, and that there shall be a power of re-entry for a breach of them.(r) Next of the means by which a covenant may be dispensed with. To enable a reversioner(s) to take advantage of a forfeiture, it is necessary that he should have the same estate in the lands at the time of the breach, as he had when the condition was created; an extinguishment of the estate in reversion, in respect of which the condition was made, extinguishing the condition also.(t) Thus, where a lease was made for a hundred years, and the lessee made an under lease for twenty years, rendering rent, with a clause of re-entry, and afterwards the original lessor granted the reversion in fee, and the grantee purchased the reversion of the *term, it was holden, that the [*172 ] grantec should not have, either the rent, or the power of reentry; for the reversion of the term to which they were incident was extinguished in the reversion in fee. (u) The reversioner must also be entitled to the reversion, at the time the forfeiture is committed, or he cannot take advantage of it.(v) When the condition is, that the lessee will not do any particular act without leave from his lessor, if leave be once granted, the condition is gone for ever; for the condition is to be taken strictly, and by the license it is satisfied. (w) And, in like manner, when a condition is entire, a license to dispense with a part of the condition is a dispensation of the whole. As where the lease contains a clause, that the lessee shall not assign without leave from his lessor, the lessee, under a license to assign part of the premises, may assign the whole without incurring a forfeiture. (x) But the license must be such as is required by the lease; and, therefore, where the lease required the license to be in writing, a parol license was held to be insufficient.(x) Provisoes for re-entry are also construed strictly with respect to the parties who may take advantage of them, and only include the persons (r) Doe, d. Oldershaw, v. Breach, 6 Esp. 106. (s) For covenants upon which the assignee of reversion may sue Vide ante 74. (t) Dumpor's case 4 Co. 120(b). (u) Thre'r v. Barton, Moore, 94. Webb . Russell, 3 T. R. 393. 402. (v) Fenn, d. Matthews, v. Smart, 12 East, 444. (w) Dumper, v. Syms, Cro. Eliz. 815. S. C. 4 Co. 119. (b) (x) Roe, d. Gregson, v. Harrison, 2 T. R. 425. Seers v. Hind, 1 Ves. jun. 294. who are expressly named. Thus, a power for C. to enter will [*173] not extend to his execu-*tor.(x) And it seems, also, that if a lessee covenant with his lessor, that he will not assign, &c. a covenant so framed will not extend to his executors or administrators, although if the executors or administrators be mentioned in the clause, they will be bound by it. (y) A power of re-entry cannot be reserved to a stranger;(z) and where, in a building lease, a trustee and his cestui que trust were both demising parties, and the power of re-entry was reserved to both, and the state of the title appeared in the recitals in the lease, the court, without argument, held the proviso to be void. (a) A forfeiture of a lease for a breach of covenant may be waived, as well as a forfeiture for non-payment of rent, or a notice to quit, that is to say, if the landlord do any act, with knowledge of the covenant being broken, which can be considered as an acknowledgment of a tenancy still subsisting; as, for example, if he receive rent accruing subsequently to the forfeiture, (b) unaccompanied by circumstances which show a contrary intention. (c) But where a right of entry was given in three months after notice of the premises being out of repair, and the landlord gave notice, and after the three months had expired, accepted rent accruing after such expiration, and then brought an ejectment, the premises being still out of repair, Lord Kenyon, C. J. was of opinion that the right of re-entry was only waived up to the period for [*174] which the rent was received, *and that the lessor was entitled to recover, upon a demise laid subsequently to that time. The jury, however, found a verdict for the defendant, and the court afterwards discharged a rule, which the lessor of the plaintiff obtained in the next term, for a new trial.(d)[1] (2) Hassel, d. Hodson, v. Gowthwaite, Willes, 500. (y) Roe.d. Gregson, v. Harrison, 2 T. R. 425. Seers v. Hinde, 1 Ves. jun. 294. ̧ 23. (z) Co. Litt. 214. (a) Doe, d. Barber, v. Lawrence, 4 Taunt. (b) Fox, v. Swann, Styles, 482. Goodright, d. Wulter, v. Davids, Cowp. 803. (c) Ante, 139. (d) Fryett, d. Harris, v. Jeffreys, 1 Esp. 393. [1] Where a lease contained covenants to keep the premises in repair, and to repair within three months after notice, and a clause of re-entry for breach of any covenant, and the premises being out of repair, the landlord But a waiver of one forfeiture incurred by breach of covenant, will not be a waiver of a second forfeiture incurred by another breach of the same covenant. And, therefore, where a right of re-entry was reserved on a breach of covenant not to under let, it was held, that the lessor was entitled to re-enter upon a second under-letting, although he had waived his right so to do upon the first. (e) It is also necessary that some positive act of waiver should take place. The landlord will not lose his right to re-enter, by merely lying by, (however long the period,) and witnessing the act of forfeiture; but it seems, that if, with full knowledge thereof, he permits the tenant to expend money in improvements, it is a circumstance from which the jury may presume a waiver, as well as ground for application to a court of equity for relief.(ƒ) It seems scarcely necessary to observe, that no act of the landlord will operate as a confirmation of a lease, rendered voidable by a breach of covenant, unless he had full notice at the time of such act, that the forfeiture had been committed. (g)[2] Before quitting this branch of our subject, it is necessary to notice a material distinction which prevails between *leases [175] for lives, and leases for years, as to the consequences of a forfeiture, when the proviso, upon which the forfeiture occurs, declares the lease "to be null and void," or, "to cease and determine," &c. upon the breach of the condition, instead of being expressed in the common form, "that it shall and may be lawful for the lessor, in such case to re-enter." In leases for lives, whatever may be the words of the condition, it is in all cases held, that if the tenant be guilty of any breach of the condition. of re-entry, the lease is voidable only, and not void; and, therefore, not (e) Doe, d. Boscawen, v. Bliss, 4 Taunt. 735. (f) Doe, d. Sheppard, v. Allen, 3 Taunt. 78. (g) Roe, d. Gregson, v. Harrison, 2 T. R. 425. gave notice to repair within three months: Held, that this was a waiver of the forfeiture incurred by breach of the general covenant to keep the premises in repair, and that the landlord could not bring Ejectment until after the expiration of the three months. Doe ex dem. Morecraft & Al. vs. Meux & Al. 4 Barnew. & Cress. Rep. 606. [2] Vide ANTE, Page 160, n. [2]. determined until the lessor re-enters, that is, brings an ejectment for the forfeiture. Because, when an estate commences by livery, it cannot be determined before entry ;[1] and, consequently, if the lessor do any act which amounts to a dispensation of the forfeiture, the lease, which before was voidable only, is thereby affirmed, and the forfeiture waived. But when clauses of the same import, as those first above mentioned, are inserted in leases for years, if the lessee be guilty of any breach of the condition of re-entry, the lease becomes absolutely void, and determined thereby; and cannot be again set up by any subsequent act of the lessor. When, however, a lease for years contains the common proviso, namely, "that it shall and may be lawful for the lessor to re-enter," or a proviso," that the term shall cease and determine, if the lessor please,”(h) the lease will be only voidable by a breach of covenant; and the forfeiture may then be waived by a subsequent acknowledgment of a tenancy, in the same manner as is in all cases of leases for lives. (i) [ *176 ] A proviso in a lease to re-enter for a condition broken, *operates only during the term, and cannot be taken advantage of after its expiration. Thus, where a lease for ninety-nine years, if A. and B. should so long live, was granted, with a proviso giving the power of re-entry, in case the lessee should under-let the premises for the purpose of tillage, and an under-tenant of the lessee ploughed up, and sowed the land, but the lessor did not enter during the continuance of the estate; it was held in an action of trespass by the lessor against the under-tenant, for entering upon the land, after the determination of the estate, for the purpose of carrying off the emblements, that the plaintiff, having never been in possession by right of re-entry for condition broken, could have no advantage thereof, and that the defendant, who ploughed and sowed the land, was entitled to take the emblements. (j) (h) Doe, d. Bristow, v. Old, K. B. Sittings after T. T. 1814. M. S, (i) Co Litt. 215,(a). Pennant's case, 3 Co. 64, 65. (j) Johns v. Whitley, 3 Wils 127. [1] Where there is a forfeiture of an estate of freehold upon condition, for non-payment of an annuity, if the grantor subsequently accept the sum due, such acceptance is in law a waiver of the forfeiture; and a forfeiture once waived can never afterwards be claimed. Chalker vs. Chalker, 1 Connect. Rep. 79, 177 CHAPTER VI. OF THE ANCIENT PRACTICE; AND THE CASES IN WHICH IT IS STILL NECESSARY. WHEN the remedy by ejectment is pursued in an inferior court, the fictions of the modern system are not applicable, for inferior courts have not the power of framing rules for confessing lease, entry, and ouster, nor the means, if such rules were entered into, of enforcing obedience to them.(k) When, also, the premises are vacated, and wholly deserted by the tenant, and his place of residence is unknown,(1) the modern practice, for reasons which will be noticed in a subsequent chapter,(m) cannot be adopted. When, therefore, the party brings his action in a superior court, the possession being vacant(n) and the lessor's *abode unknown, and when he is desirous of trying his title in [ *178 ] a court of inferior jurisdiction, all the forms of the ancient practice must be observed:[1] a lease must be sealed upon the premises; an ouster actually made; and the parties to the suit will be real, and not imaginary persons. (k) The King v. Mayor of Bristow, 1 Keb. 690. Sherman, v. Cocke, 1 Keb. 795. It is said by Gilbert, C. B. that if the defendant in an inferior court, enter into a rule to confess lease, &c. and the cause be removed, and the judge of the inferior court grant an attachment against the defendant for disobedience to the rule, the superior court will grant an attachment against the judge, for exceeding his authority, and obstructing the course of the superior court. (Gilb. Eject. $8.) (1) Strict proof of this fact will be required; and if it appear, that the premises were not [1] The principles, as to the proceedings for a vacant possession in England, do not apply to unsettled lands in this country. Saltonstall vs. White, 1 Johns. Cas. 221. Same Case. Cole. Cas. 86. |